Major deal for LLC. Calculation of a major transaction: balance sheet asset lines Concept and characteristics of a major transaction

According to Art. 46 of the Federal Law “On LLC”, when classifying a transaction as a “major” transaction, the value “the value of the company’s property, determined on the basis of the financial statements for the last reporting period preceding the day the decision was made to carry out such a transaction” is used. What is the position of the highest judicial authorities on what is meant by the value of property and how it is determined. What accounting indicators should be taken into account when determining this value, and using what formula? What are the guidelines and what is the case law?

Answer

Judicial practice has established that the “value of the company’s property” when determining a major transaction is understood as “the book value of the company’s assets (current and non-current)” (Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 13, 2001 No. 62, Determination of the Supreme Arbitration Court of the Russian Federation dated July 22, 2014 No. VAS- 9687/14, Resolution of the FAS Central District of October 23, 2012 No. A54−5052/2011, Resolution of the FAS UO dated, Resolution of the FAS VVO dated). The indicators used are listed in the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 13, 2001 No. 62.

For information on how a major transaction in an LLC is approved, read the recommendations below.

The rationale for this position is given below in the materials of the “Lawyer System” .

“Individual transactions in an LLC must be concluded in a special manner established by law. Such transactions include, in particular, the so-called “major transactions”. If you do not follow the established procedure for completing such a transaction, it may be declared invalid.

Before a company enters into a transaction, a lawyer should check whether it falls under the criteria of a “major transaction” and, if necessary, ensure that the established procedure is followed.

Which deals are big?

A major transaction is a transaction or several interrelated transactions related to the acquisition, alienation or possibility of alienation by the company, directly or indirectly, of property, the value of which is 25 percent or more of the value of the company’s property (“On Limited Liability Companies”; hereinafter referred to as the LLC Law) *.

The lower limit (25%) of a major transaction may be increased by the company's charter ().

In what cases can a court recognize several transactions as interrelated and consider them together as one major transaction?

The legislation does not establish this.

The Plenum of the Supreme Arbitration Court of the Russian Federation indicated several specific signs that may indicate the interconnectedness of transactions*:

a single economic goal when concluding transactions;

general economic purpose of the sold property;

consolidation of all property alienated in transactions into the ownership of one person;

a short period of time between the execution of several transactions.

Such signs are listed in paragraph 8 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated May 16, 2014 No. 28 “On some issues related to challenging major transactions and interested party transactions” (hereinafter referred to as Resolution No. 28).

However, even before the Plenum of the Supreme Arbitration Court of the Russian Federation gave these clarifications, it followed from judicial practice that the risk of recognizing transactions as interrelated increases significantly if*:

transactions are homogeneous and completed with the same persons in a short period of time;

property alienated or acquired through transactions is connected by a single technological process or a single purpose;

transactions are aimed at achieving common legal consequences or a common goal.

Typically, the courts recognized transactions as interrelated if several of the listed signs occurred simultaneously (, definitions of the Supreme Arbitration Court of the Russian Federation and). Most likely, the courts will continue to pay attention to the number of available signs in the future.

In addition, now, when considering cases related to challenging large transactions, courts will need to compare the value of property alienated in all related transactions with the book value of assets as of the last reporting date. This date will be considered the balance sheet date preceding the conclusion of the first of the transactions().

The value of the property that is alienated by the company as a result of a major transaction must be determined according to the financial statements for the last reporting period (i.e., on the last calendar day of the month) preceding the day the decision was made to approve the major transaction (Part 1, Article 13, Federal Law of December 6, 2011 No. 402-FZ “On Accounting” (hereinafter referred to as the Law on Accounting); “Accounting Statements of an Organization” (PBU 4/99), approved)*.

The value of the property that the company acquires must be determined on the basis of the offer price, which is usually specified in the agreement (clause 46 of the LLC Law).

The value of the property of the company itself should be considered equal to the value of its assets (without reduction by the amount of debts), determined on the basis of financial statements for the last reporting period (i.e., on the last calendar day of the month) preceding the day the decision was made to approve a major transaction (; clause, Article 13 of the Law on Accounting;).

Major transactions are not()*:

transactions that are made in the normal course of business of the company;

Attention! It is not always possible to prove that a transaction relates to the ordinary business activities of the company.

The law does not establish which transactions are considered ordinary business activities.

The Plenum of the Supreme Arbitration Court of the Russian Federation indicated that ordinary business activities should be understood as any transactions that are accepted in the current activities of the company, regardless of whether the company has made such transactions previously ().

In particular, transactions made in the ordinary course of business may include transactions:

for the company’s acquisition of raw materials and materials necessary for conducting production and economic activities;

for the sale of finished products;

to obtain loans to pay for current operations.

For example, a court may consider a transaction aimed at purchasing wholesale quantities of goods for their subsequent sale through retail sale () to be ordinary business activity.

However, a transaction cannot be classified as ordinary business activity solely on the basis of the fact that:

the transaction was completed within the framework of the type of activity that is indicated in the Unified State Register of Legal Entities or the charter of the LLC as the main one for this company,

and/or the company has a license to conduct this type of activity.

Such clarifications are given in paragraph 6 of Resolution No. 28. Previously (before May 28, 2014, i.e. before Resolution No. 28 was published), the courts classified as ordinary business activities the activities of the company, prescribed in the charter and aimed at systematically generating profit () .

Also, the court, most likely, will not classify transactions that are not typical for the company as ordinary business activities, such as:

assignment agreement();

bill of exchange agreement();

mortgage agreement();

pledge of movable and immovable property and issuance of sureties in order to ensure the fulfillment of obligations of third parties();

acquisition (including leasing) of expensive fixed assets (resolutions of the Federal Antimonopoly Service of the Volga Region and);

agreement for the assignment of a share in the authorized capital of another company().

transactions, the execution of which is mandatory for the company in accordance with the law and settlements for which are made at prices determined by the authorized authority.

This provision is applicable, in particular, when concluding an agreement for the provision of services for the transmission of electrical energy, since its conclusion is mandatory for the network organization ().

It should be remembered that consumers of such services are not required to enter into an agreement, and therefore, for them, the completion of such a transaction must be approved in the prescribed manner ().

Attention! A lease agreement can be a major transaction not only for the tenant, but also for the landlord.

This is confirmed by judicial practice. When assessing the contract, the court will additionally examine whether the property (including premises, vehicles, equipment, etc.) leased is necessary for the company to carry out its main production activities (, regulations, etc.).

For a tenant, a lease agreement can be a major transaction, since the total amount of rental payments will exceed 25 percent of the value of the company’s property.

Attention! Approval may be required for more than just a contract.

The concept of “transaction”() is broader than the concept);

issuance of a bill;

payment of the authorized capital of another business company;

depositing funds as security for the execution of a contract concluded based on the results of the auction.

Can also be major transactions:

preliminary agreement;

additional agreement to the contract();

agreement on joint activities;

employment contract with an employee of the company().

Is it necessary to approve a transaction for the sale and purchase of shares concluded between LLC participants if it corresponds to the established size of a large transaction?

No no need.

If the participants of an LLC have entered into an agreement for the purchase and sale of a share in the authorized capital of the company, then the LLC itself is not a party to such an agreement. In this case, alienation of LLC property does not occur. In this regard, such an agreement is not a major transaction.

This is confirmed by judicial practice().

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(see text in the previous edition)

1. A major transaction is a transaction (several interrelated transactions) that goes beyond the scope of ordinary business activities and at the same time:

Related to the acquisition, alienation or possibility of alienation by the company directly or indirectly of property (including a loan, credit, pledge, guarantee, acquisition of such a number of shares (other issue-grade securities convertible into shares) of a public company, as a result of which the company has an obligation to send mandatory offer in accordance with Chapter XI.1 of the Federal Law of December 26, 1995 N 208-FZ “On Joint-Stock Companies”), the price or book value of which is 25 percent or more of the book value of the company’s assets, determined according to its accounting (financial) data reporting as of the last reporting date;

providing for the obligation of the company to transfer property for temporary possession and (or) use or to provide a third party with the right to use the result of intellectual activity or a means of individualization under the terms of a license, if their book value is 25 percent or more of the book value of the company’s assets, determined according to its accounting (financial) ) reporting as of the last reporting date.

2. In the event of alienation or the possibility of alienation of property, the greater of two values is compared with the book value of the company’s assets - the book value of such property and the price of its alienation. In the case of property acquisition, the acquisition price of such property is compared with the book value of the company's assets.

In the case of transfer of the company's property for temporary possession and (or) use, the book value of the property transferred for temporary possession or use is compared with the book value of the company's assets.

In the event that the company enters into a transaction or several related transactions to acquire shares (other issue-grade securities convertible into shares) of a public company, which will entail the company's obligation to acquire shares (other issue-grade securities convertible into shares) in accordance with Chapter XI. 1 of the Federal Law of December 26, 1995 N 208-FZ "On Joint-Stock Companies", the book value of the company's assets is compared with the price of all shares that can be acquired by the company under such transactions, in accordance with Chapter XI.1 of the Federal Law of December 26, 1995 No. 208-FZ "On Joint-Stock Companies".

3. Making a decision on consent to a major transaction is the competence of the general meeting of company participants.

If a company has a board of directors (supervisory board) of the company, making decisions on consent to carry out major transactions related to the acquisition, alienation or possibility of alienation by the company directly or indirectly of property, the value of which is from 25 to 50 percent of the value of the company’s property, may be attributed the company's charter falls within the competence of the board of directors (supervisory board) of the company.

The decision on consent to a major transaction must indicate the person(s) who is a party to it, the beneficiary, the price, the subject of the transaction and its other essential conditions or the procedure for determining them.

The decision on consent to carry out a major transaction may not indicate the party to the transaction and the beneficiary if the transaction is concluded at an auction, as well as in other cases if the party to the transaction and the beneficiary cannot be determined by the time consent to carry out such a transaction is received.

The decision on consent to the completion or subsequent approval of a transaction may also contain an indication:

on the minimum and maximum parameters of the terms of the transaction (the upper limit of the purchase price of property or the lower limit of the cost of selling property) or the procedure for their determination;

to consent to a number of similar transactions;

on alternative options for the terms of a transaction that requires consent to complete it;

to consent to a transaction subject to the completion of several transactions simultaneously.

A decision on consent to or subsequent approval of a major transaction may indicate the period during which such a decision is valid. If such a period is not specified in the decision, the consent is considered valid for one year from the date of its adoption, unless a different period follows from the essence and conditions of the transaction to which consent was given, or the circumstances in which consent was given.

A major transaction may be concluded under the suspensive condition of obtaining appropriate consent for its completion in the manner established by this Federal Law.

4. A major transaction completed in violation of the procedure for obtaining consent to carry it out may be declared invalid in accordance with Article 173.1 of the Civil Code of the Russian Federation at the suit of the company, a member of the board of directors (supervisory board) of the company or its participants (participant) having at least than one percent of the total number of votes of the company's participants.

The limitation period for a claim to declare a major transaction invalid if it is missed cannot be restored.

5. The court refuses to satisfy demands to recognize a major transaction made in violation of the procedure for obtaining consent for its execution as invalid if at least one of the following circumstances exists:

by the time the case is considered in court, evidence of subsequent approval of such a transaction has been presented;

When considering the case in court, it was not proven that the other party to such a transaction knew or should have known that the transaction was a major transaction for the company, and (or) about the absence of proper consent to its completion.

6. If a major transaction is at the same time a transaction in which there is an interest, and in accordance with this Federal Law the issue of consent to such a transaction is submitted for consideration by the general meeting of participants, the decision on consent to such a transaction is considered adopted if the number of votes required in accordance with the requirements of this article, and the majority of votes of all participants not interested in the transaction, are cast for it.

to transactions the completion of which is mandatory for the company in accordance with federal laws and (or) other legal acts of the Russian Federation and settlements for which are made at prices determined in the manner established by the Government of the Russian Federation, or at prices and tariffs established by the authorized Government of the Russian Federation federal executive body, as well as to public contracts concluded by the company on terms that do not differ from the terms of other public contracts concluded by the company;

to transactions for the acquisition of shares (other issue-grade securities convertible into shares) of a public company, concluded on the terms stipulated by the mandatory offer to purchase shares (other issue-grade securities convertible into shares) of a public company;

to transactions concluded on the same terms as the preliminary agreement, if such agreement contains all the information provided for in paragraph 3 of this article, and consent to its conclusion has been received in the manner prescribed by this article.

8. For the purposes of this Federal Law, transactions that do not go beyond the scope of ordinary business activities are understood to be any transactions that are accepted in the activities of the relevant company or other business entities engaged in similar types of activities, regardless of whether such transactions were previously carried out by such company, if such transactions do not lead to the termination of the company’s activities or a change in its type or a significant change in its scope.

Today we propose to consider the following topic: “How to determine the size of a transaction for an LLC.” We have collected and prepared complete information on the topic, which will allow us to solve any problem. If after reading the article you still have questions, you can ask the duty lawyer at any time.

Big deal

In the current law on LLCs, a major transaction is designated as an agreement that can be considered major for the following forms of ownership: LLC and JSC. This term is applicable to a concluded transaction if it meets certain criteria and takes into account the legal form of the legal entity. This can also include a group of united interrelated transactions. The following parameters act as signs of the relationship of these agreements: homogeneity, sufficient proximity in terms of the date of their execution, the same list of parties involved and one acquirer, a common economic goal.

The definition of a major transaction for an LLC involves the alienation of either property acquired by it with a value of 25% of all property owned by the company, or has a value above this threshold. The organization's charter may contain a higher limit, according to which a transaction will be recognized as a major one. According to the company’s charter, the following types of transactions may be included in the group of large transactions that require approval:

on the upper or lower limit of the sale price of property or the procedure for their establishment;
permission to conclude a number of similar agreements;
alternative terms of the contract, the conclusion of which requires approval;
approval of the transaction subject to the conclusion of several contracts simultaneously.

The signs of a major transaction are defined in Article 46 of Federal Law No. 14-FZ of 02/08/1998. "About LLC." The main criterion is cost. To recognize a transaction as a large one, the value of the property acquired, alienated, or possibly alienated as a result of the transaction must be 25% of the value of the LLC’s property - cost of LLC registration. The company's charter may determine a higher percentage of the cost criterion and add to the list of major transactions. The value of the LLC's property is calculated according to the financial statements compiled for the last reporting period. Transactions that relate to the normal business activities of the enterprise are not considered major.

The concept of a major transaction for legal entities

The FAS Russia in its practice is guided by these provisions, pointing out in relevant decisions the illegality of actions of government customers to reject applications from procurement participants due to the latter’s failure to submit decisions on the approval of large transactions in cases where we are talking about transactions carried out in the course of ordinary business activities participant in order placement.2

When classifying business transactions as large, arbitration courts proceed, first of all, from an analysis of the types of economic activities carried out by companies. And, if a transaction was concluded in order to ensure the implementation of a certain type of economic activity or is directly caused by this type of economic activity, then it will be recognized as a transaction concluded in the course of ordinary business activity. This is confirmed by judicial practice.1

In the event that the company enters into a transaction or several related transactions to acquire shares (other issue-grade securities convertible into shares) of a public company, which will entail the company's obligation to acquire shares (other issue-grade securities convertible into shares) in accordance with Chapter XI. 1 of the Federal Law of December 26, 1995 N 208-FZ “On Joint-Stock Companies”, the book value of the company’s assets is compared with the price of all shares that can be acquired by the company under such transactions, in accordance with Chapter XI.1 of the Federal Law of December 26, 1995 No. 208-FZ “On Joint-Stock Companies”.

How to determine the size of a transaction for an LLC

In order to reduce the number of abuses with the assessment of the value of a transaction, the new version of the law establishes that the advantage in determining the price of a transaction has the largest value - the book value or price (clause 1.1 of Article 78 of Law No. 208-FZ as amended). This rule is intended to protect the interests of society and its participants, since the likelihood of a transaction falling into the large category increases.

For example, a company sells premises for 1,000,000 rubles. The book value of the property at the time of sale is 250,000 rubles. The value of the company's assets at the time of sale of the premises is 2,000,000 rubles. As a result, the cost of the transaction will be equal to 50 percent of the value of the company's assets; the transaction will be large. When transferring the same property into temporary possession, the transaction will not be large, since the ratio of values (the value of assets and the book value of property) will be 12.5 percent.

How to determine the size of a LLC transaction

uniformity;
proximity in time of occurrence;
participation of the same persons, the only final acquirer;
a single economic goal, for example, the withdrawal of property on the eve of bankruptcy (Resolution of the AS ZSO dated 05/06/2019 No. F04-5070/2012 in case No. A46-18707/2012).

Calculation of the value of assets as of the last reporting date that precedes the signing of the contract.
Calculation of the ratio of the value of the contract being concluded and the assets of the company - if the final indicator exceeds the threshold of 25%, a more thorough analysis of the operation should be carried out.
Determination of the cause-and-effect relationship with the organization's property.
Establishing relationships with other contracts that have a similar meaning.
Identification of the fact that the operation is classified as ordinary business activity.

Approval of a major LLC transaction

If an organization plans to make a transaction that falls under the concept of “major,” it is necessary to notify the owners of the LLC. At a general meeting, company members discuss the feasibility of concluding a specific transaction, reject it or approve it by a majority vote.

2. The transaction is aimed at the purchase and sale of JSC property, the emergence of collateral obligations, the transfer of property for rent, and the granting of the right to use intellectual property.

3. The value of the property under the agreement exceeds 25% of the value of the assets of the JSC. To compare the value of assets with the price of the contract, it is necessary to proceed from the following:

if a JSC buys or sells property, then its value is compared with the accounting data of the JSC;
if the property is leased, it is necessary to compare its book value with the financial statements of the joint-stock company.

If interrelated transactions are concluded together with the main agreement (concluded in the same time period, for the same purpose, with the same counterparty), the value of the property transferred under them is also summed up with the value of the property under the main transaction.

The procedure for making a decision to carry out a major transaction and obtaining consent for its implementation (approval)

To carry out major transactions, a joint-stock company must make a decision on this and obtain the consent of the board of directors of the joint-stock company or the general meeting (clause 1 of article 78 of Federal Law No. 208).

IMPORTANT! The decision can be made both before and after the transaction is concluded. The agreement may also indicate that it is executed only after receiving approval (paragraph 7, paragraph 4, article 79 of Federal Law No. 208).

The decision-making procedure is as follows:

The cost of the subject of the contract is determined (clause 1, article 77 of Federal Law No. 208).
A general meeting or a meeting of the board of directors is initiated. The general meeting must resolve the issue if the JSC does not have a board of directors or if this body referred the issue to the general meeting for resolution in the manner prescribed by paragraph. 2 p. 2 art. 79 Federal Law No. 208. In addition, if the contract price is more than 50% of the value of the JSC’s assets, the decision is made exclusively by the general meeting.
A vote is taken on this issue and a decision is made on consent or disagreement to conclude an agreement. In this case, the members of the board of directors must vote unanimously. If the issue is resolved at a general meeting, then if the transaction price is from 25 to 50% of the assets of the JSC, more than 50% of the participants must vote for, and if the transaction price is more than 50% - 75% of the participants.

The decision is drawn up in the form of a protocol (Article 181.2 of the Civil Code of the Russian Federation). It states (clause 4 of article 79 of Federal Law No. 208):

counterparty;
beneficiary;
contract price;
subject of the contract;
essential conditions;
other conditions that are important for a particular transaction.

For which major transactions does the consent procedure not apply?

Not all transactions that can formally be classified as large are classified as such.

By virtue of clause 3 of Art. 78 Federal Law No. 208 the following types of transactions cannot be classified as:

agreements concluded by the JSC with the sole shareholder, who simultaneously performs the functions of the sole executive body;
agreements related to the placement of JSC shares (or the provision of services for their placement);
processes taking place during reorganization, merger, acquisition of a joint stock company;
transactions concluded at prices determined by government bodies and mandatory for conclusion;
transactions that result in the purchase of shares on the terms provided for in a mandatory offer;
transactions concluded under the terms of a preliminary agreement, under which consent to its conclusion was previously obtained.

Interested party transaction in a joint stock company

The concept of the type of transactions under consideration is given in paragraph 1 of Art. 81 Federal Law No. 208. These are agreements in which the following are interested:

members of the board of directors of the joint-stock company;
executive body of the JSC;
persons who control the JSC;
persons who have the right to give instructions mandatory for the JSC.

The interest of the above persons in concluding JSC agreements can be expressed in the fact that their close relatives, adoptive parents, trustees:

participate in the transaction, that is, they are a party to it;
control the party to the transaction;
manage an organization that is a party to the contract, or are intermediaries or representatives of such persons.

A transaction with an interested party of a joint-stock company may simultaneously have the characteristics of a large one. The type of transactions in question can be concluded without prior approval, but before this the JSC must notify the members of the board of directors, the executive body of the JSC, and in some cases the shareholders about it. The notice specifies all the characteristics of the transaction, including the counterparty and essential terms. It is sent 15 days or earlier before the date of conclusion of the contract.

In addition to the notices of Art. 82 Federal Law No. 208 provides for the need for interested parties on the part of the JSC to notify the company about planned and already concluded transactions within 2 months from the moment such persons became aware of the presence of an interest factor.

As already mentioned, consent is not required to carry out this type of transaction, but there is an exception. It is necessary if required by the executive body of the JSC. To obtain consent, a general meeting (or meeting of the board of directors) is convened and an appropriate decision is made to approve the transaction.

Thus, the legislation establishes criteria for classifying certain transactions as major, as well as the procedure for their conclusion and approval. Unlike a major transaction, approval of an interested party transaction is not mandatory in most cases.

Approval of a major LLC transaction. Key points

Authorized representatives of a limited liability company can make major transactions on behalf of the organization only if such transactions are approved by a majority of participants.

Unapproved transactions can subsequently be challenged, declared invalid and “played back.”

Property assets and rights form the basis of any enterprise, which means that the alienation of a significant part of them can lead to significant losses, instability of the business’s position in the market and even financial insolvency. In this connection, Russian legislation gives business owners the right to control large transactions and, if necessary, to prevent their conclusion.

Detailed analysis of the terms of the planned transaction;
Assessment of potential risks;
Refutation or confirmation of the “size” criterion of the transaction;
Protection of the interests of the LLC and its participants in negotiations with counterparties;
Participation in the approval procedure for major transactions and in the preparation of contracts;
Ensuring the legal purity of the transaction.

How to determine a major transaction for an LLC

What is a major transaction for an LLC and how to calculate it

The presence of legislative grounds for recognizing a major transaction makes it possible for owners to actually protect their business from unwanted and uncoordinated actions of the general director. If a transaction that meets the criteria of a major one is carried out without the approval of the owners, they will have a legal opportunity to challenge it.

Concluding a major transaction for an LLC or JSC, as a rule, imposes a number of large-scale obligations on the business entity. Most often financial (for example, related to payment for purchased goods). Acceptance of such obligations without the knowledge of the owners of the company or their authorized representatives is in many cases an extremely undesirable scenario for business.

Big deal

The size of a major transaction in 2019 is determined by calculating 25% of the indicator indicated in line 700 “Balance” of the current accounting report. The obtained result serves as a control value that allows you to determine the size of the transaction.

The very concept of a major transaction for an LLC is defined in the relevant Federal Law No. 14, in Article 46. The designated term is described here and detailed explanations are given regarding all aspects of the issue posed. According to this legislative act, two key criteria for a major transaction for an LLC are established:

Definition and characteristics of a major transaction for LLC and JSC

For a JSC, the definition of a major transaction is given by Article 78 of Federal Law No. 208-FZ of December 26, 1995. "On joint stock companies." As in the case of an LLC, the definition of a large one may include a direct transaction or a chain of interrelated transactions, for example, a guarantee, obtaining a loan, or a pledge. The value criterion for a joint-stock company is set at 25% or more of the book value of the company’s assets, which is calculated according to the balance sheet as of the last reporting date. Transactions that relate to the normal business activities of the company or are related to the sale/placement of ordinary shares of the company through subscription are not considered major.

The current legislation does not contain a clear formulation of the company's normal business activities. Judicial practice shows that in order to recognize a transaction as completed in the course of current economic activity, the following is necessary:

Major transaction for an LLC: concept, calculation, approval procedure in 2019

Federal Law No. 14 establishes that transactions concluded by an LLC, where only one person acts as a founder, cannot be considered large. To confirm this fact, it is enough to provide an extract from the Unified State Register of Legal Entities. If, over time, the composition of the company expands, then in order to avoid unnecessary claims, it is better to obtain the approval of the contract by all participants, even if it is made under a preliminary agreement concluded with a different composition.

In 2019, long-predicted changes to the part of the legislation that concerns the definition of large transactions came into force. The changes also affected the issues of qualifying criteria, approval procedures, and made adjustments to the process of issuing decisions on permitting such transactions by governing government bodies. Now a transaction qualifies as major only if it goes beyond the scope of the company’s standard business activities.

What transaction is considered major for an LLC?

The decision to approve a major transaction must indicate the persons who are the parties, beneficiaries in the transaction, the price, the subject of the transaction and its other essential conditions. The decision may not indicate the persons who are the parties, beneficiaries in the transaction, if the transaction is subject to conclusion at auction, as well as in other cases, if the parties, beneficiaries cannot be determined by the time of approval of a major transaction.

For a limited liability company (LLC), the transaction will be major if it involves the acquisition, alienation (or possible alienation) of property, the value of which is ¼ or more of the value of the entire property of the enterprise. The cost is determined using financial statements. Also, a higher threshold for a major transaction may be provided for in the LLC charter.

The concept of a major transaction for an LLC

Management in the company is entrusted to the executive directorate. In order to protect the property rights of owners, the legislator established a cost limit for contractual obligations (25% of assets), under which a single executive body does not have the right to make decisions independently.

The operation is considered completed if the terms of the concluded agreement coincide with those previously approved, i.e. the price, subject of the agreement, conditions for conclusion, and the beneficiary side are preserved. If you deviate from these conditions or do not fully comply with them, the risks of its termination remain.

Major transaction: we process it according to all the rules

The vote of a participant (shareholder) of the company who filed a claim to recognize a major transaction as invalid could not influence the voting results, even if this participant (shareholder) took part in voting on the issue of approving this transaction (provided that the decision to approve transactions are adopted by the general meeting of participants (shareholders), and not by the board of directors (supervisory board) of the company);

So, starting from July 1, 2009, both in limited liability companies and in joint stock companies, a transaction or several interrelated transactions made with property, the value of which is 25% or more of the total value of the company’s property, is recognized as a large one. Let us recall that before this date, a transaction by a limited liability company with property, the value of which was equal to 25%, was not considered major and, therefore, was not subject to prior approval by the owners.

Major deal for LLC in 2019

KS, according to the norms and definitions of the law, represents a transaction related to the purchase or alienation. Applies to property, its value must be 25% or more from the value of common property, as determined as part of the financial statements for the last period. This is reported in the editorial resolution of the Federal Law dated December 30, 2008 No. 312.

events of Companies in which 100% of voting securities are the property of one person who has the powers and rights of the sole executive body;
operations related to the provision of services related to the placement or organization of shares, issue-grade securities convertible into shares;
transactions formed in the process of transfer of property rights following the reorganization of the company’s activities, including under merger and accession agreements;
agreements, the conclusion of which is considered mandatory for the company, in accordance with the norms of the current federal legislation - legal acts;
measures for the purchase of shares and other securities that are convertible into them, upon conclusion on the terms provided for in the mandatory offer;
procedures carried out on the same terms as preliminary agreements, if the latter include all the information specified in Federal Law No. 208, Art. 79 clause 4.

Sources

Bar exam. Educational and practical manual. In 2 volumes (set); Yurayt - M., 2014. - 885 p.
Ganapolsky, M.Yu. Justice for fools, or the most incredible lawsuits and decisions / M.Yu. Ganapolsky. - M.: Astrel, AST, 2014. - 972 p.

The law has two signs of a major transaction:

the transaction amount is more than 25% of the book value of assets. We'll talk about assets a little later;
the transaction is outside the normal course of business of the company. Typical activities are those that are typical for other companies in the industry. If a construction company builds houses, there are no questions. But if a construction company suddenly makes a deal to sell a ton of pies, that deal is out of scope.

A transaction is considered a major transaction if both signs coincide. Now let's take a closer look at an example:

A construction company is selling a residential building. The house is worth more than 25% of the company's assets. But building and selling houses is common for construction companies, so it's not a big deal.

An example from another area. Clients have stopped coming to the chain of hair salons, but the chain owns 12 premises. The network decides to rent out half of them, which results in more than 25% of the assets. And renting out premises is an atypical transaction; hair salons usually do not do this. If both signs coincide, it means the deal is big.

It happens that the transaction itself is for a small amount, but there are many such transactions, they are similar and ultimately give more than 25% of assets. This is called a series of transactions, which the tax authorities may also consider large.

A chain of hair salons is selling six premises to different people, the price of each is 5% of the chain's assets. These transactions meet the criterion of atypicality and give a total of 30%. A series of such transactions will be considered large.

Now let's look at the book value of assets.

How to calculate a large deal

To understand which transaction will be large, you need to understand the balance sheet of the LLC. The balance sheet is the company's assets and liabilities. Assets are the property of a company that can generate income. For example:

money;
debts that must be repaid to her;
real estate;
securities;
investments;
reserves.

And liabilities are what assets consist of, for example, authorized and additional capital, loans.

Every year, an accountant calculates how many assets a company has and how many liabilities it has. This calculation is called the “balance sheet.” His company submits it to the tax authorities and Rosstat.

This is what the balance sheet looks like at the end of the year:

There are many different lines in the balance sheet, we are interested in the line “total assets”

Whether a major transaction is or not can be determined by the amount in the “total assets” line.

The first number in the line is assets for the reporting period, the second is assets for the previous period. The first digit is taken for calculation

12,000,000 rubles - company assets;

25% of assets - the amount with which the transaction will be large;

x - major transaction in rubles.

We count. To quickly get 25% of any amount, divide by four:

x = 12,000,000 / 4 = 3,000,000 rubles - for the company in the example, transactions from this amount are considered large.

Companies present their balance sheet reports in different ways. Standard - by March 31 of the next year, but for 2018 it must be submitted by April 1, 2019, because March 31 is a day off. If the transaction takes place in February 2019, when the report for last year has not yet been submitted, the amount of assets is taken from the report for 2017.

There are companies that submit reports more often than once a year. This is called interim reporting. For example, construction companies and those with loans submit reports once a quarter. They count transactions based on the amount of assets from the last report.

Prepare a decision on approval of the transaction

Approval of a transaction is the consent of the company's participants to its implementation. Without consent, the tax authority and any of the company participants can cancel it.

The transaction is approved at a meeting of company participants. During the meeting, the secretary takes minutes and writes: who voted against and who voted for. There should be at least one more votes in favor.

When there are dissenting votes, it is necessary to indicate who exactly refused to approve the deal. Those who vote against will not be liable for the company's debts if the deal leads to bankruptcy. Protocol template for approval of a major transaction

The company's charter may stipulate other conditions. For example: to approve a major transaction, only the consent of the general director, management company or other LLC is required. The condition is prescribed in the charter at the time of creation of the company.

The sole founder of the LLC does not need to hold a meeting with himself; it is enough to sign the decision.

The sole founder of the LLC, instead of approving the participants, prepares a decision on a major transaction. You can do it without a seal, just sign it. Download solution template

Minutes and decisions are kept as long as the company exists. After liquidation, the protocols can be thrown out or archived if desired.

Large transactions have their own risks: they can be canceled by the tax authorities, and participants risk losing their apartments.

What does the company risk?

The main risk with large transactions is the cancellation of the deal. The tax office or company members can cancel it if the transaction went through without approval.

The Bourgeois company sold the building to the Elite company. By all indications, the transaction was large, but the selling company did not receive the approval of the company participants. Six months later, the tax authorities canceled the deal. The building returned to "Bourgeois", and "Elite" got their money back.

But during these six months, Elite invested a million rubles in repairs and advertising. The “Elite” will demand this million from the “Bourgeois” in court.

The buyer can play it safe: ask the selling company for a balance sheet to calculate whether the transaction is large. And, if yes, make sure that it is approved according to the rules: ask for a copy of the protocol or decision.

What risks do society members take?

The law has a concept - subsidiary liability. It is when members of the company are liable for debts with personal property, if a major transaction led the company to bankruptcy.

Typical scenario: the company has an authorized capital of at least 10,000 rubles. With this capital she is responsible for her debts. Money, apartments and iPhones of LLC participants are not taken away for debts.

Bad scenario: If the arbitration manager admits that a large transaction is to blame for bankruptcy, everyone who approved this transaction will be liable with property.

There are risks even if the company has one founder, and he does not need to obtain approval. He is also liable for debts with his property.

A transaction is not considered major until proven otherwise. The plaintiff is the one who goes to court to cancel the deal. The plaintiff has a year to do this.

The year is counted from the day when the plaintiff learned or should have learned about the violation of the requirements for approval of the transaction. I should have found out - the wording is from the law, in practice, everything is ambiguous with the definition of this moment. For example, for a company participant, the countdown begins on the day he is given a summons to a meeting to discuss a major transaction.

illustrator - Daria Privalova

What is a major deal?

A large transaction is considered to be a transaction related to the acquisition or alienation of property, the value of which is 25% or more of the book value of the enterprise’s assets. The value of assets is determined according to the financial statements as of the last reporting date (see Art. 78 208-FZ “On Joint-Stock Companies” and Art. 46 14-FZ “On Limited Liability Companies”).

Large transactions do not include transactions that are carried out in the normal course of business of the company.

No decision required in normal operations:

If the sole participant of an LLC (or shareholder of a JSC) is at the same time its sole executive body (Part 7, Article 46 14-FZ and Clause 1, Part 3, Article 78 208-FZ).
For individual entrepreneurs, since an individual does not have to approve transactions for himself.

In public procurement, legal entities always need to provide a Solution, but such a document is not required from individual entrepreneurs. In commercial cases - at the discretion of the customer. Very rarely, commercial customers require this document not only from legal entities, but also from individual entrepreneurs.

Procurement under 44-FZ

The solution is attached to the application when registering the supplier in the Unified Information System, but there are problems with integration between the portal and the platforms and not all documents are transferred immediately to the personal account of the ETP. Since the Solution is required in every purchase, it is better to play it safe and duplicate the documents in the second part of the application.

Document preparation

Until 2019, all participants in government procurement were accredited separately at each federal site. At the same time, the sites always carefully checked the documents. If the Decision on the amount was drawn up incorrectly, the operator rejected the application and indicated the specific error in the document. After this, the participant edited it and re-applied for accreditation.

During 2019, all government procurement participants must register in the Unified Information System (hereinafter referred to as the UIS). After registration in the Unified Information System, documents are transferred to personal accounts of federal sites automatically without additional verification. Thus, if you have an error in the Decision, it will become clear not at the time of registration in the Unified Information System, but when your application is rejected on this basis. Therefore, the preparation of all documents should be approached as responsibly as possible.

What to consider when forming a solution

Let's name six rules:

The decision on consent to a major transaction is made by the general meeting of company participants. If the company consists of a single participant, he makes the Decision alone.
The decision of the general meeting of participants of a limited liability company must comply with the requirements provided for in Art. 181.2 of the Civil Code of the Russian Federation. If there are several founders in an LLC, the decision of the general meeting is made by a majority. There are two options for drawing up such a protocol: notarize it or independently, but in strict accordance with Part 4 of Article 181.2 of the Civil Code of the Russian Federation.
The Decision must contain the following wording: “In accordance with paragraph 3 of Article 67.1 of the Civil Code of the Russian Federation, the adoption of a decision by the general meeting of the Company’s participants and the composition of the Company’s participants present at its adoption is confirmed by signing the document by all the company’s participants present at the meeting.”
The amount in the decision should relate to each individual transaction, and not to the total number of all transactions of the organization. It would be a mistake to write« approve transactions in the amount of 10,000,000 (Ten million) rubles" The customer is not obliged to calculate how many transactions the participant has concluded since the document appeared. It would be correct to indicate: “ The maximum amount of one such transaction should not exceed 10,000,000 (ten million) rubles».
Be sure to indicate in the Decision its validity period. If this is not done, the documents are valid for one year. Not everyone remembers this rule, which is why customers so often reject applications with an expired Solution.
From judicial practice: during the consideration of the case, it was established that the decision submitted by the participant did not indicate the period during which transactions could be made. In this case, the decision is valid for one year. At the time of the auction, this period had already expired. The argument that the execution of such contracts is a normal business activity for the company did not work. Document: Determination of the Armed Forces of the Russian Federation dated March 25, 2019 No. 310-ES19-1603.
Be sure to indicate the amount in the Decision in numbers and words. It is better to indicate the amount with a reserve so as not to redo the document before each application. There are no restrictions on numbers; many suppliers indicate the amount in the decision« 1,000,000,000 (One billion) rubles».
A funny incident: one of our clients indicated in the decision “unlimited rubles 00 kopecks.” This should not be done; the decision must indicate a specific maximum amount for one transaction.
In 2019, all procurement under 44-FZ switched to electronic form, so do not forget to add all types of procurement procedures to the Solution, and not just electronic auctions.

Procurement under 223-FZ

In most procurements under 223-FZ, there is a condition that the participant must provide either a Decision on approval of the transaction, or information that the transaction is not large with justification. Therefore, it should also be attached to each application.

Very rarely, but still there is a condition that the Decision must be issued for a specific transaction that is planned to be concluded based on the results of the purchase. Always read the documentation carefully and, if necessary, adjust the Solution before submitting your application.

To compose a Solution, you can use these templates:

Decision on the transaction amount for a single participant.
Minutes of the general meeting of participants.

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